Taylor (liquidator), in the matter of Heading Contractors Pty Ltd (in liq) v Heading (No 2) [2021] FCA 925

Taylor (liquidator), in the matter of Heading Contractors Pty Ltd (in liq) v Heading (No 2) [2021] FCA 925

The plaintiffs obtained the affirmative answer they sought on the separate question, while the third defendant failed to obtain the negative answer it contended for. Although one alternative basis advanced by the plaintiffs was rejected and other issues, including the non-disclosure defence, remained to be tried, the construction issue was significant, discrete and readily identifiable, and there was no utility in apportioning costs. It was appropriate to determine costs immediately so that the parties would know their accumulating costs liabilities. The third defendant was therefore ordered to pay the plaintiffs' costs of and incidental to the determination of the separate question,...

Jurisdiction
Australia
Judgment Date
29 July 2021
Procedural Posture
Application for Costs Following Determination of a Separate Question in a Corporations and Corporate Insolvency Proceeding / After Reasons on the Separate Question; Interlocutory Costs Application Determined on 29 July 2021
Outcome
Application for costs granted; the third defendant was ordered to pay the plaintiffs' costs of and incidental to the determination of the separate question, with costs of the hearing on 29 July 2021 to be costs in the cause.
Legal Topics
['costs Following the Event' 'separate Question' 'construction of Insurance Contract' 'provable Debt in Bankruptcy' 'non Disclosure Defence' 'federal Court Costs Discretion']
['costs' 'corporations and Corporate Insolvency' 'bankruptcy' 'insurance'] ['costs Following the Event' 'separate Question' 'construction of Insurance Contract' 'provable Debt in Bankruptcy' 'non Disclosure Defence' 'federal Court Costs Discretion']

Case Brief

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Procedural Posture

Application for Costs Following Determination of a Separate Question in a Corporations and Corporate Insolvency Proceeding / After Reasons on the Separate Question; Interlocutory Costs Application Determined on 29 July 2021

Legal Issues

  1. 1 ["Whether the third defendant should pay the plaintiffs' costs of and incidental to the determination of the separate question." 'Whether costs of the separate question should follow the event of that question or be reserved for determination at the conclusion of the trial of the remaining issues.' 'Whether any costs apportionment was warranted because the plaintiffs succeeded on one alternative construction argument but not another.']

Ratio Decidendi

The plaintiffs obtained the affirmative answer they sought on the separate question, while the third defendant failed to obtain the negative answer it contended for. Although one alternative basis advanced by the plaintiffs was rejected and other issues, including the non-disclosure defence, remained to be tried, the construction issue was significant, discrete and readily identifiable, and there was no utility in apportioning costs. It was appropriate to determine costs immediately so that the parties would know their accumulating costs liabilities. The third defendant was therefore ordered to pay the plaintiffs' costs of and incidental to the determination of the separate question,...

Court Disposition

Application for costs granted; the third defendant was ordered to pay the plaintiffs' costs of and incidental to the determination of the separate question, with costs of the hearing on 29 July 2021 to be costs in the cause.

Orders

  • ['In respect of the separate question proposed pursuant to Order 1 dated 25 February 2021, the Court answers: "Yes, provided that the defendants are not foreclosed from arguing that the relief sought in [1.1] and [3] of the Third Amended Originating Process ought not to be granted in the exercise of the Court\'s...